Supreme Court Will Hear Latest Clash Between Faith and Gay Rights

LITTLETON, Colo. — Ten years ago, a Colorado baker named Jack Phillips turned down a gay couple who asked him to make a wedding cake, saying that state law prohibiting discrimination on the basis of sexual orientation must serve obey his faith.

The dispute, a white hot spot in the culture wars, has been brought to the Supreme Court. But Anthony M. Kennedy’s Justice narrow majority opinion in 2018 did not address the question of whether the First Amendment would allow businesses that are open to the public to discriminate on the basis of their owners’ religious beliefs. Indeed, public opinion admits that the court has merely thrown the can on the street and will have to decide “some future controversy regarding events similar to this”.

That controversy has now come, and the truth is really the same. A graphic designer named Lorie Smith, who works just a few miles from Mr. Phillips’ Masterpiece Cakeshop, challenged the same Colorado law for the same reason.

“He was an artist,” Ms. Smith said of Mr. Phillips. “I am also an artist. We should not be punished for staying true to our beliefs.”

The underlying arguments in the case, which will be made before the Supreme Court on Monday, are both familiar and polarizing.

On one side are those who say that the government should not force them to violate their principles in order to make a living. On the other hand are same-sex couples and others who say they receive equal treatment from businesses that are open to the public.

Both sides say the consequences of the court’s ruling could be huge, albeit for different reasons. Supporters of Ms. Smith say a state ruling would allow the government to force all types of artists to present things that are contrary to their beliefs. Her opponents say a ruling in her favor would create a loophole through anti-discrimination laws and allow businesses that engage in expression to refuse to serve, such as Blacks. Black or Muslim based on hateful but sincere beliefs.

The Court will hear those arguments that have been converted as of the 2018 decision Justice Kennedy retired later that year and Justice Ruth Bader Ginsburg’s Death in 2020The Supreme Court has moved to the right and is particularly receptive to claims of religious freedom.

Furthermore, when the Supreme Court overturned Roe v. Wade in JuneJustice Clarence Thomas submitted a concurring opinion call for the abolition of the right to same-sex marriage. Gay rights advocates fear Smith’s ruling will undermine that right, considering same-sex couples’ marriages as second-class marriages unworthy of legal protection.

Previously, the court had the opportunity to review the larger issues in the Masterpiece Cakeshop case, but rejected the appeal from a florist in Washington state and the owner of a bakery in Oregon who say they should not be forced to create works for same-sex unions.

Decision to hear the case of Miss Smith perhaps motivated by a number of factors: an increasingly assertive majority of six conservative judges, the feeling that Ms. Smith’s designs are more likely to be protected by the First Amendment, and the wishes of at least some judges cancel or limit Obergefell sues Hodgesdecision in 2015 establishing the right to same-sex marriage.

Ms. Smith, during an interview in her humble but cheerful studio in an office building in suburban Denver, sat near a sign engraved with the Bible verse: “I am God’s masterpiece.” She says she’s happy to create graphics and websites for anyone, including LGBTQ people. But her Christian faith, she said, doesn’t allow her to create messages celebrating same-sex marriage.

“When I chose to start my own business as an artist to create custom expression,” she says, “I did not give up my First Amendment rights. “

Phil Weiser, the attorney general of Colorado, countered that the constitution has no right to discriminate. “Once you open the door to the public, you have to serve everyone,” he said. “You can’t reject people based on who they are.”

The court decided that Masterpiece Cakeshop on a unique platform was not an issue in the new case, 303 Creative v. Elenis, No. 21-476. Justice Kennedy, writing for the majority in 2018, said Mr Phillips had been unfairly treated by members of the civil rights committee who had made religiously hostile comments.

Mr Phillips’ limited win remains unresolved as to whether he has the constitutional right to refuse to create custom cakes for LGBTQ people. Indeed, a Colorado appeals court recently heard argument when he appealed the ruling against him in a case brought by a transgender woman.

In the Supreme Court, Mr. Phillips pursued claims based on his freedom to practice religion and free speech. Ms. Smith also asked the Supreme Court to consider both of those grounds, but the judges agreed to decide only “whether the application of public accommodation law to compel an artist to speak or to remain silent.” silence violates the First Amendment’s free speech provision.”

Both Mr. Phillips and Ms. Smith are represented by Alliance Defending Freedom, a conservative Christian law firm and advocacy group. sued many cases for clients who oppose abortion, contraception, and gay and transgender rights.

Weiser, the Colorado attorney general, said there is an important difference between the Masterpiece Cakeshop case and the new one. Mr. Phillips has refused to serve an actual couple, David Mullins and Charlie Craig, who have filed civil rights charges, saying they have been demeaned and humiliated. The details of the meeting are important in assessing legal issues, he said.

In contrast, Ms. Smith sued before facing any penalty.

“This is a fabricated case,” Mr. Weiser said. “There are no wedding websites yet. No one has turned away. We are in a world of pure suppositions.”

Ms. Smith countered that she should not risk being penalized for exercising her rights.

“If I continue to create weddings that align with my beliefs, the State of Colorado will go after me,” she said. “Instead of waiting to be punished, I decided to stand up for my First Amendment rights. I don’t need to be punished before I challenge an unjust law.”

The two Colorado cases differ in a different way, at least in the eyes of some legal scholars, especially Dale’s Carpenter, a professor of law at Southern Methodist University. In the Masterpiece Cakeshop case, Professor Carpenter submitted a short supporting gay couple with Eugene Volokh of the University of California, Los Angeles.

But in the new case, they sided with Miss Smith. Professor Carpenter did so, he explained in an interview, in part because he has dedicated his career to the cause of promoting gay rights.

“It seems to me that freedom of speech is essential to the cause of LGBT rights,” he said. “It cannot flourish without the liberties guaranteed by the First Amendment. I consider these things to go hand in hand.”

Prof Carpenter added that Mr Phillips’ cakes do not deserve First Amendment protection, but Mrs Smith’s graphics and website do.

Prof Carpenter said: “Baking is not an inherent or traditional means of expression. “People make cakes for taste or nutrition.”

Miss Smith’s design work is different, he said. It involves “activities that are inherently expressive, including through conventional means of communication such as writing or speaking,” he said.

Kristen K. Wagoneran attorney for Alliance Defending Freedom, agrees that the two cases are different.

“This is an easier case than Masterpiece,” she said. “We have pure speech here.”

David D. Cole, the legal director of the American Civil Liberties Union, who represents the couple in Masterpiece Cakeshop, says that’s not the point. As long as Ms. Smith’s company is open to the public and sells a certain service, he said, it must comply with state anti-discrimination laws.

Mr. Cole said a ruling in favor of Ms. Smith and her company, 303 Creative, would have serious consequences.

“If 303 Creative wins here, we’ll live in a world where any business with expressive service can hang a sign that says ‘Women underserved, Jews underserved, blacks are not served’ and claim First Amendment rights to do so,” he said. “I don’t think any of us want to live in that world, and I don’t think the First Amendment requires us to live in that world.”

A divided panel of three judges of the United States Court of Appeals for the 10th Circuit, in Denver, judgment against Miss Smith even if it accepts most of her arguments.

“Creating wedding websites is pure words,” Judge Mary Beck Briscoe wrote for the majority, and Colorado’s anti-discrimination law forces Ms. Smith and her company to “create custom websites that they wouldn’t otherwise have done.”

That means, Judge Briscoe wrote, that anti-discrimination law must exist in the most rigorous form of judicial oversight, one that requires the state to demonstrate a compelling interest and show that the law narrowly adjusted to address that interest. Judge Briscoe said Colorado proved both.

Judge Briscoe wrote: “Colorado has a compelling interest in protecting both the dignified interests of members of disadvantaged groups and their material interests in accessing commercial markets.

In dissent, Chief Justice Timothy M. Tymkovich said “the majority took a remarkable — and novel — position that the government could force Ms. Smith to deliver messages that would violate her conscience.”

“It seems we have moved from ‘live and let live’,” he wrote, “to ‘you can’t say so.’”